Tough economic times may mean more failure-to-promote suits

In hard economic times, when employer labor budgets are stretched thin and raises are tough to come by, employees begin to see promotions as the only way to get a significant pay raise, short of taking another job altogether. It should come as no surprise then if litigation over missed opportunities and pay raises increases.

Here’s what you can do to protect your organization from failure-to-promote lawsuits.

If you aren’t already doing so, make sure every promotion decision is grounded as much as possible in concrete, objective decision-making. Then document how you made those decisions so you can later show how the process worked. It’s exceedingly difficult to explain to a jury why the candidate you chose was the best for the job when you have nothing—no notes, no test scores, no educational records—to back up your claim.

If you have those records, however, you easily will be able to counter charges of discrimination from a passed-over employee.

Your thoroughness puts the ball in the employee’s court. Now the runner-up has to show the jury that no reasonable employer would have chosen anyone but him. Good luck with that.

Recent case: Steven Goodin worked for the Army and applied for a promotion. When a woman was selected for the job, he sued, alleging sex discrimination. He said he was better qualified.

But the Army won the case quickly. It proved the woman had far broader experience, plus a master’s degree. She also impressed the selection panel with an excellent interview.

All Goodin had was an offhand comment by a member of the selection committee that it had preferred a woman. That wasn’t nearly enough to prove he was so much better qualified that no reasonable employer would have passed him over. (Goodin v. Harvey, No. 08-10684, 11th Cir., 2008)

Tips for documenting the promotion process

Here are tips on documenting the way you decide who gets a promotion:

Create strict guidelines for whom you will consider to fill openings. For example, explain that all jobs will be posted, and employees who want to apply must do so by a strict deadline and in a specific way. Insist interested applicants put it in writing.

If you use a selection committee, explain to members that they should take notes during the process. For example, if the process includes an interview, they should grade the interview using a standard format such as a checklist or ranking process.

Use as many objective criteria as possible. These include education, years of training, special skills and commendations. Stay away from subjective, gut measures such as “team player” and “enthusiastic employee” unless you can back that up with examples.

Collect the evaluations and notes, and retain them in the HR office.

When announcing the promotion, highlight the selected candidate’s skills, education or other assets that made her the best candidate.

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